Merit Brief by Barbara R. Marburger

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[The challenge to the election of June 1, 1999 should be denied because the Relators (Grendell, Phillips ...) did ...

Proposition 1 knowingly and unreasonably delay ...
Proposition 2 file too close to the election date ...
Proposition 3 claim that electors should be disenfranchised ...
Proposition 4 clearly disregard the law ...
Proposition 5 claim that three ... part-petitions ... should be invalidated ...
Proposition 6 fail to provide ... the specific signatures ...
Proposition 7 contend that the Avon City Council did not have before it a written request for an election ...
Proposition 8 style their action ... as if the action is being prosecuted on behalf of the City of Avon ... ]

    IN THE SUPREME COURT OF OHIO [6-1-99]

STATE OF OHIO, CITY OF AVON, ) CASE No. 99-0941
EX REL. THE RYANT COMMITTEE, )
ET AL.,                      )
Relators,                    )  ORIGINAL ACTION
                             )  IN PROHIBITION
v.                           )
                             ) (Expedited 
LORAIN COUNTY BOARD OF       )  Election Matter)
ELECTIONS, ET AL.,           )
                             )
Respondents.                 )
____________________________________________
MERIT BRIEF OF INTERVENING RESPONDENTS THE 
AVON CITIZENS COMMITTEE FOR AVON COMMONS AND
ROBERT BARNHART 
____________________________________________
Timothy J. Grendell, Esq. (0005827)
Grendell & Associates L.L.P.R.
6060 Rockside Woods Blvd., Suite 250
Independence, OH 44131
216/524-6444
Attorneys for Relators

Gerald W. Phillips, Esq. (0024804)
35955 Detroit Road
Avon, OH 44011
440/937-5545
Pro Se Relator

Barbara R. Marburger, Esq. (0019152)
Todd Hunt, Esq. (0008951)
Walter & Haverfield, P.L.L.
1300 Terminal Tower
Cleveland, OH 44113-2253
216/781-1212 Fax No. 216/575-0911
Attorneys for Avon Citizens Committee for Avon Commons and Robert Barnhart

Gerald A. Innes, Esq. (0009020)
Assistant Prosecuting Attorney
226 Middle Avenue, 3rd Floor
Elyria, OH 44035
440/329-5398
Attorney for Respondent Lorain County Board of Elections

Jennifer L. Brunner, Esq. (0024440)
Brunner & Brunner Co., L.P.A.
545 East Town Street
Columbus, OH 43215-4801
614/241-5550
Attorneys for First Interstate Development Company

STATEMENT OF FACTS

On January 29, 1999, Robert Barnhart, on behalf of the Avon Citizens Committee for Avon Commons, filed a copy of an initiative petition with the Clerk of Council for the City of Avon. The initiative petition requested a special election on Tuesday, June 1, 1999, on a proposed ordinance to change the zoning of a piece of property.

(See Initiative Petition, Avon Citizens Exhibit 3.) Under Article X, Section 1 of the Avon Charter, the petitioners committee would have to submit signatures of at least 30% of the electors of the City of Avon, no later than April 1, 1999, in order to be entitled to a special election on June 1.

According Article X, Section 5, of the Avon Charter, the number of signatures necessary to represent 30% of the electors is to be derived from upon the number of electors registered on the date of the last November election, as determined by the Lorain County Board of Elections. According to the Board of Elections, that number was 6,529 electors. (Vierkorn Certification, Relators' Exhibit A.) The Avon Citizens were therefore required to submit 1959 valid signatures.

On March 2, 1999, the petitioners committee filed the initiative petition, including 120 part-petitions, with the Clerk of Council. (Id.; Relators' Exhibits PP-1 to PP-120.) The very same day that the petition was filed, Relators, through Gerald Phillips and another person, inspected and photocopied all of the part-petitions. (Kathleen Herbst Affidavit, Avon Citizens Exhibit 1.)

On March 10, 1999, Avon Clerk of Council Patricia Vierkorn certified to the Avon Council that the initiative petition was sufficient, and that the Board of Elections had verified that the petition contained 2,039 valid signatures, which was more than the 30% needed for a special election. (Vierkorn Certification, Relators' Exhibit A.)

On March 22, 1999, the Avon Council considered first whether to pass the zoning amendment themselves as Ordinance No. 61-99. The Council rejected Ordinance No. 61-99. Immediately after voting on Ordinance No. 61-99, the Council voted on and passed Ordinance No. 62-99, submitting the proposed zoning ordinance to the electors at a special election to be held on June 1, 1999. (Minutes of Avon City Council, 3/22/99, Avon Citizens Committee Exhibit 4; Relators' Exhibit D.)

On March 30, 1999, the Relators filed a Notice of Protest with the Lorain County Board of Elections, claiming a variety of election law violations had occurred (essentially the same list filed in this case) and requesting that the Board reject the petition. (Relators' Exhibit E.) The election date was 62 days away.

On April 13, 1999, the Director of the Board, Marilyn Jacobcik, and Chief Assistant County Prosecutor Gerald Innes held an informal pre-hearing conference that was attended by representative for the Relators, for each of the Intervening Respondents, and for the City of Avon. (Excerpt of Tr. Board Conference 4/11/99, Relators' Exhibit R.)

Director Jacobcik stated that in fact, the Board had determined that the total of valid signatures was 2,075. (Tr. Board Conf. 4/11/99, page 27, lines 1-2; page 28, lines 10-13.) Mr. Innes requested that the Relators provide specific references to identify the basis for their claims.

The Relators were advised that the earliest tentative date for the Board to meet to consider the protest was May 10, 1999. (Verified Complaint, Para. 31.) The election date was 48 days away.

Relators provided some specific identification of the factual basis for their protest on April 23, 1999. The election date was 38 days away.

On May 3, 1999, the Board, through Mr. Innes, faxed some preliminary determinations concerning the Relators challenges to the Relators' counsel. The election date was 28 days away.

Relators were displeased with the preliminary determinations, which did not generally sustain the Relators' challenges. Relators filed a Notice of Protest with the Board objecting to their preliminary determinations. (Notice of Protest (2d), Relators' Exhibit Y.)

On May 10, 1999, the Board of Elections attempted to convene a hearing, but was left without a quorum when the chairman recused himself and left the meeting. The remaining Board members received testimony, including the testimony of Robert Conrad, who had circulated Part-petition No. 94, and Intervening Respondent Robert Barnhart, who had circulated Part-petition No. 112. Both had been subpoenaed to the meeting by the Board. (See Tr. Board Hearing 5/10/99, Relators' Exhibit L.)

Mr. Barnhart was examined regarding the signatures of Mr. and Mrs. Magyary on Part-petition No. 112, which had been called into question. He testified that he had handed the part-petition to the Magyary's at a restaurant, cautioned them to sign their own names, then reseated himself at the adjacent table. He believed that the petition had been signed in his presence, and that each of the Magyary's had written his or her own name, although he had not actually been watching Mr. Magyary at the time. He testified that he did not knowingly let anyone, including the Magyary's, sign another person's name to his petition. (Tr. Board Hearing 5/10/99, pages 37-42.)

Mr. Conrad was examined regarding the signatures of Elmer Kuenzer and of Harold and Barbara Ault. Mr. Conrad testified that he had no recollection at all about collecting the Kuenzer signature. Regarding the Aults, he testified that he saw Mr. Ault outside their house and Mr. Ault signed the part-petition. Then Mr. Ault said that he would ask his wife, who was inside the house suffering with flu, if she would like to sign, too. He took the petition while Mr. Conrad followed. Mr. Conrad stopped at the door when Mr. Ault entered the house and remained there, listening to Mr. Ault speak with a woman. When Mr. Conrad received the part-petition back with Mrs. Ault's name on it, he believed that she had signed it. (Tr. Board Hearing, pages 43 - 48.)

On May 13, 1999, 19 days before the election date, Relators filed this action.

On May 20, 1999, the Board met with a quorum present. All of the Board members had either attended the May 10 hearing or had reviewed the transcript and the materials from that hearing. (Tr. Board Hearing 5/20/99, page 3, line 18, to page 4, line 8, Relators' Exhibit M.) The Board heard the testimony of Relators' expert handwriting analyst, Anthony Iezzi, Ph.D. Relators maintained that Dr. Iezzi's testimony was necessary to determine whether certain signatures were authentic. (Tr. Board Hearing 5/20/99, page 11, line 23, to page 12, line 7.)

At the conclusion of the May 20 hearing, the Board voted unanimously to reject Relators' protest that the proposed zoning amendment should not go on the special election ballot. The Board then voted unanimously to certify the issue for the June 1, 1999 election. (Tr. Board Hearing 5/20/99, page 94, line 6, to page 97, line 15.)

On June 1, 1999, the electors of the City of Avon cast their ballots, exercising their right under the Ohio Constitution and the City of Avon Charter to accept or to reject the proposed zoning amendment. Pursuant to the Court's sua sponte Order of May 21, 1999, their ballots have been impounded.

ARGUMENT

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Proposition of Law No. 1:

Where opponents of an election seeking extraordinary relief to bar an election knowingly and unreasonably delay filing their action so that it cannot be decided before the date of the election, their claim is barred by laches.

Relators' Complaint should be dismissed on the grounds of laches, since it is clear that they unreasonably delayed by filing this action less than three weeks before the election was to be held. Relators could have filed their case at least a month earlier, which would have permitted disposition of the case on the merits prior to the election.

As a result of Relators' delay, this case could not be submitted, let alone decided, before June 1, 1999, when the voters of Avon cast their ballots in the election that the Relators are trying to prevent. Consequently, laches bars the Relators' action and it must be dismissed.

"In election-related matters, extreme diligence and promptness are required." State ex rel. SuperAmerica Group v. Licking County Bd. of Elections (1997), 80 Ohio St.3d 182, 186.

Extraordinary relief in the form of writs of prohibition or mandamus are routinely denied by this Court in election-related cases on the basis of laches.
State ex rel. Ascani v. Stark County Bd. of Elections (1998), 83 Ohio St.3d 490;
State ex rel. SuperAmerica Group, supra;
State ex rel. Polo v. Cuyahoga County Bd. of Elections (1995), 74 Ohio St.3d 143;
State ex rel. White v. Franklin County Bd. of Elections (1992), 65 Ohio St.3d 45.

"The elements of laches are

State ex rel. Ascani, supra, 83 Ohio St.3d at 493, quoting State ex rel. Polo, supra, 74 Ohio St.3d at 145. All of those elements are present in this case.

Relators' delay is clearly unreasonable and knowing, since the consequence of delay in filing must inevitably have been to have this case unresolved on the date of the election. Their delay is inexcusable, and the blame cannot be shifted to the Board of Elections. The Relators do not rely in their Complaint upon the deliberations of the Board of Elections but rather ignore them.

Additionally, "delay by the board does not excuse relators' delay" in pre-election challenges. State ex rel. Manos v. Delaware County Bd. of Elections (1998), 83 Ohio St.3d 562, 564. Furthermore, there is no "exhaustion" requirement before seeking the extraordinary writ of prohibition.

On March 2, 1999, the petitioners committee filed with the Council of the City of Avon the part-petitions that are the subject of Relators' multiple challenges.

That very day, Relators were given full access to the part-petitions. Relators were even able to photocopy all of the part-petitions on March 2.

On March 22, 1999, the Avon Council passed the submission ordinance to require the Respondent Board of Elections to hold an election on June 1, 1999, on the proposed ordinance. (Verified Complaint, Para. 27.)

Relators admit that by that time, they had already had sufficient opportunity to inspect and study the signatures on the petition to be able to lodge a protest. (Verified Complaint, Para. 24.)

By March 30, 1999, as Relators admit, they had constructed and filed a Notice of Protest with the Respondent Board of Elections. (Verified Complaint, Para. 29 and Exhibit E thereto.)

In fact, Relators admit that only four days were required to properly research the Notice of Protest. (Relators' Merit Brief, page 35.)

The protest included the same array of challenges to the signatures, the petitions, the submission ordinance, and the proposed election that the Relators have raised in this action.

Furthermore, Relators admit that by April 13, 1999, they had been notified by the Board of Elections that their protest would not be heard before May 10, 1999. (Verified Complaint, Para. 31.)

If Relators had filed an original action with this Court on March 30, 1999, in addition to filing their Notice of Protest on that date, their case would have been fully submitted by April 22, 1999, pursuant to Supreme Court Rule X, Section 9, "Expedited Election Matters."

If Relators had filed an original action with this Court on April 14, 1999, the day after they admit they learned that the Board of Elections would not decide their protest before May 10, their case would have been fully submitted to this Court by May 6, 1999. Yet they waited another month, until May 13, to file this action.

Relators implicitly acknowledge that there was no reasonable basis for delaying the commencement of this action after April 13, for in their briefs on the merits and in opposition to motions to dismiss, they offer no response to Respondents' argument that there can be no valid excuse for delaying commencement of this action after April 13.

Indeed, they acknowledge in their brief on the merits that in order to be timely, they were required to commence this action "when it became clear that the Board was not able to . . . provide Relators with an adequate remedy before the June 1, 1999, election." (Relators' Merit Brief, page 36.)

Insofar as "an adequate remedy" is a decision on the Relators' protest, the Board has provided that remedy, which prompted Relators only to amend their complaint. Insofar as "an adequate remedy" is the opportunity for a meaningful appeal, it has been clear since April 13 at the latest that the Board would not be able to complete its proceedings in time for such an appeal to be heard prior to the June 1 election, or even in time for this Court to be able to review the Board's final decision prior to the June 1 election.

Relators claim to have resorted to this action to find a "complete, adequate and speedy" remedy in the absence of the opportunity for "meaningful appeal." (Verified Complaint, Paras. 40, 41.) Yet, it has been absolutely clear since at least April 13, when the Board of Elections announced its first hearing date of May 10, that no matter how quickly the Board of Elections disposed of the protest, there could be no assurance of "any meaningful appeal" (Verified Complaint, Para. 41) before the date of the election, June 1, 1999. Nonetheless, the Relators delayed commencement of this action until May 13, 1999, less than three weeks before the date of the election.

According to this Court, the Board's duty to place municipal issues on the ballot is ministerial unless or until a protest is filed, at which point the Board's functions are treated as quasi-judicial. See, e.g., State ex rel. Youngstown v. Mahoning County Bd. of Elections (1995), 72 Ohio St.3d 69, 71.

Completion of the protest procedure before the Board is not a prerequisite for the availability of a writ of prohibition; at most, it should be sufficient that a protest have been filed, invoking the quasi-judicial authority of the Board. Id. at 72.

Regardless of the status of protest proceedings before a board of elections, this Court "has recognized that a writ of prohibition may issue to prevent the placement of names or issues on a ballot . . . as long as the election has not yet been held." State ex rel. Thurn v. Cuyahoga County Bd. of Elections (1995), 72 Ohio St.3d 289, 291.

Relators, who are represented by counsel experienced in expedited election matters before this Court, knew that by waiting to file this action until May 13, 1999, the Court would be unable to decide their case on the merits before the date of the special election on June 1, 1999.

It is clear that it has been Relators' intention to file this action all along. For example, their primary objection to providing the Board of Elections with the factual grounds for their protest is that they did not want to reveal their "hundreds of hours" of work product. (Relators' Merit Brief, page 30.)

The reason that Relators were so reluctant to reveal their so-called evidence to the Board of Elections is that they wanted to save their "work product" for when it really counted, in this Court. But their gamesmanship has no place in either the judicial process or the electoral process.

Prejudice to the Avon Citizens and the electors of the City must be assumed in this case. Relators are seeking to cancel the petitioners rights of initiative and to invalidate an election. The cost of the election has already, unavoidably, been incurred. The voters have already exercised their right of franchise.

This Court does not permit unreasonable delay by those opposing the holding of an election to prejudice the rights of electors. State ex rel. Ascani, supra, 83 Ohio St.3d at 494.

Relators chose to delay filing this action until less than three weeks before the election, knowing that it could not be decided before the election date. They have offered no legal justification for their delay. Their delay was knowing, unreasonable, and prejudicial to the citizens of Avon as well as all of the Respondent parties herein. Consequently, Relators' right to pursue this legal action is barred by laches and the case should be dismissed.

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Proposition of Law No. 2:

Where an action challenging the procedures by which an election has been called is filed too close to the election date to be decided before the election, and the integrity of the election itself is not at issue, the results of the election will not be disturbed.

All of the Relators' allegations against the initiative process in this case are procedural. Essentially, all of the Relators claims are directed to whether the required number of Avon electors have mandated that a special election to be held on June 1, 1999. There are no allegations challenging the substance of the proposed law as it appeared on the petition or as it will appear on the June 1, 1999 ballot. There is no question that the issue has been and will be fairly presented to the electors. Compare East Ohio Gas Co. v. Wood County Bd. of Elections (1998), 83 Ohio St.3d 298 (inaccurate petitions could have substantially misled signers).

As a result of the Relators' delay in instituting this action, the Board of Elections has held the special election on June 1, 1999, with the express approval of this Court. The electors of Avon cast their ballots on June 1, 1999, to express their will as to whether the proposed ordinance should be adopted or rejected. Once they have done so, all of the Relators' challenges as to whether a sufficient number of Avon electors wanted to have the opportunity to vote at all are be moot. All that need be determined is whether the Avon electors have approved the proposed law or rejected it.

Relators are trying to characterize the exercise of the initiative a special election as a privilege, not a right. (Relators' Merit Brief, page 15.) However, the right to exercise the initiative power is guaranteed by Article II, Section 1f, of the Ohio Constitution, and the right of municipal electors to determine for themselves through their charter how to execute that right is guaranteed by Article XVIII, Sections 3 and 7, of the Ohio Constitution.

The Avon Charter provides that if 30% of the electors call for a vote on an initiated ordinance, they have the right to select the date of the election, so long as it is more than 60 days away. This is not a privilege; it is a right secured by the Ohio Constitution.

Relators are asking this Court to throw out perfectly good ballots. But this extraordinary intervention into the political process can only be considered "[w]here irregularities in an election are so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes and raise a doubt as to how the election would have resulted had such irregularities not occurred." Otworth v. Bays (1951), 155 Ohio St. 366, paragraph one of the syllabus. Relators' challenges do not bring into question whether the Avon voters can fairly decide the issue they went to the polls on June 1, 1999 to vote on.

This Court recognizes the principle that "The survival of our system of government requires that proper respect be given to the will of the people as expressed at the ballot box." MacDonald v. Bernard (1982), 1 Ohio St.3d 85, 86. The Court has upheld the vital importance of electors trusting that their right to the franchise will not be usurped by the courts or an angry minority:

The message of the established law of Ohio is clear: our citizens must be confident that their vote, cast for a candidate or an issue, will not be disturbed except under extreme circumstances that clearly affect the integrity of the election.

In re Election of Nov. 6, 1990 for Office of Atty. Gen. of Ohio (1991), 58 Ohio St.3d 103, 105.

To nullify, on the basis of the Relators' belated filing, the votes that the citizens of Avon cast on June 1, 1999 would be a great injustice. Because Relators delayed too long in commencing this attempt to stop the election, they must be left to pursue their political objectives through the political process. Their action should be dismissed.

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Proposition of Law No. 3:

The Ohio Constitution and statutes permit an elector to be "registered" and to sign a petition as of the day he or she completes a voter registration form if the form is filed with the board of elections by the time the petition is filed with the secretary of state or the municipal clerk.

Revised Code Section 3503.06 states that a person must be registered as an elector in order to sign a petition. Revised Code Section 3501.38(A) states that boards of election are to determine an elector's qualification as of the date that the petition is filed. The Secretary of State has determined that for purposes of applying R.C. 3503.06, an elector is registered as of the time he or she completes the Voter Registration Form if the Form has been filed with the board of elections by the time the petition is filed. (Secretary of State Directive No. 98-19, Relators' Exhibit K.)

This type of delayed or retrospective perfecting of a right or status is not unusual in legal or administrative matters. See, e.g., Ohio Admin. Code 124-1-03(B) (in order to be timely, appeal from layoff must be filed with the State Personnel Board of Review or postmarked within ten days); Federal Rule of Appellate Procedure 25(a)(2) (brief is timely filed if on or before the last day for filing it is mailed to the clerk).

There is no constitutional or statutory prohibition on this method of determining when an elector is registered. Relators refer repeatedly to Article V, Section 1 of the Ohio Constitution, "Who May Vote," claiming that it imposes a 30-day waiting period before a newly registered elector may sign a petition, but the subject of this law is not who may sign, but who may vote. The constitutional provision states that when a person has been registered for 30 days "is entitled to vote in all elections."

Relators know very well that the 30-day restriction of Article V, Section 1, does not apply to signing initiative petitions, for this Court held in In re Protest Filed by Citizens for Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 106, that "[a]n elector must be 'registered' in order to either vote or sign such petition on the day that he or she decides to exercise the right," not on the 31st day beforehand.

In Merit Selection of Judges, supra, this Court did not decide when precisely registration may be determined to have occurred. While the exact point could be fixed at several different, arbitrary points, the provisions of R.C. 3503.11, "Voter Registration Through Motor Vehicles Bureau," should be kept in mind.

That statute provides for the registration of voters when they appear to apply for drivers licenses. The registrar of motor vehicles is required to offer applicants the opportunity to register or update their voter registration, but is not required to forward the completed registration forms to a board of elections for five days, and even then is required only to "send" the forms, not to cause them to be delivered within that time frame. When can those new electors sign petitions? More importantly, how will they know when they can effectively exercise that right?

If "registration" occurs when the elector completes the form, subject to timely filing with respect to any petitions the elector might sign, then any elector will know that he or she can effectively exercise the right to sign petitions so long as he or she has filled out the voter registration form. This method is completely consistent with all statutory provisions, encourages rather than discouraging exercise of electoral rights, and permits certainty at the appropriate times as to the qualification of the electors who have signed a petition.

Of course, Relators argue that it would be better, at least in this case, if registration is not recognized until some point after it has been received by the board of elections, when the person's registration application form is actually picked up by some employee at the board and "processed." (Relators' Merit Brief, page 8.) If the "processor" happens to be backed up or out sick the week you want to change your registration, that will just be too bad.

While the interpretation of the Secretary of State as to when registration occurs is not the only possible interpretation, it is a reasonable interpretation that does not conflict with any laws or constitutional provisions. "When an election statute is subject to different, but equally reasonable interpretations, the interpretation of the Secretary of State, the state's chief election officer, is entitled to more weight." State ex rel. Chance v. Mahoning Cty. Bd. of Elections (1996), 75 Ohio St.3d 42, 43, quoting State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 586.

This Court should not replace the Secretary of State's reasonable, lawful interpretation of when registration occurs with an unnecessarily restrictive interpretation. Relators' claim that the electors who signed petitions after filling out a voter registration form should be disenfranchised must be denied.

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Proposition of Law No. 4:

A printed name that accompanies a cursive signature, address, county, and date on a part-petition is permitted by R.C. 3501.38(B) and is not a "signature" for purposes R.C. 3501.38(E).

In their Proposition of Law No. 4, Relators contend that circulators undercounted the signature totals on part-petitions Nos. 46, 55, 95, 112, and 114. Relators further contend that these alleged undercounts violate R.C. 3501.38(E), and that these part-petitions must be rejected in toto as a result. However, review of the controlling law and of the part-petitions themselves easily establishes that the circulators counts are unquestionably correct. The fact that Relators would proffer this argument at all highlights their bad faith, for they are demanding invalidation of five part-petitions, containing the signatures of 140 electors on the basis of a claim that is totally unsupportable in fact or law.

(Note: With the total of Avon electors numbering only 6,529, these five part-petitions alone contain the signatures of over 2% of the voters of the City of Avon, all attempting to exercise their constitutional right to the initiative power.)

Revised Code Section 3501.38, "Declaration of Candidacy, Nominating Petition, Other Petition Requirements; Election Falsification," relied upon by the Relators in support of their argument, sets forth the rules for petitions presented to a board or elections. Subdivisions (B) and (E) of that section provide as follows:

(B) Signatures shall be affixed in ink. Each signer may also print his name, so as to clearly identify his signature.

(E) On each petition paper the circulator shall indicate the number of signatures contained thereon and shall sign a statement made under penalty of election falsification that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be.

(Emphasis added.)

This Court has clearly established that for a name on a petition to be a "signature" as that term in used in R.C. 3501.38, the name must be written in cursive.
State ex rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, 208;
State ex rel. Rogers v. Taft (1992), 64 Ohio St.3d 193, 196-97;
State ex rel. Green v. Casey (1990), 51 Ohio St.3d 83, 85.
In those same cases, the Court has acknowledged that R.C. 3501.38(B) provides for printing an elector's name on the petition "so as to clearly identify his signature." Id. It is therefore crystal clear that under Ohio law, a name that is printed on a part-petition is not a "signature" as that term is used in R.C. 3501.38. Yet the sum and substance of Relators' Proposition of Law No. 4 is that part-petitions containing the signatures of well over 100 electors should be thrown out because the circulators did not count printed names as signatures.

In particular, Relators claim that the circulator's statement on Part-petition No. 46 undercounts the signatures on that part-petition. Part-petition No. 46 is filled in through Line 27. Lines Nos. 25 and 26 contain the printed name "Michael Caronchi," the cursive name "Michael Caronchi," and a street address, ward and precinct numbers, county, and date. It is obvious that only one person's "signature" appears on Lines 25-26. The circulator's statement verifies that the part-petition contains 26 signatures. By looking at the part-petition itself, it is easy to see that the statement is unquestionably correct.

Part-petition No. 55 is filled in through Line 35. Line No. 13 contains a name written in cursive, a street address, county, and date. Line No. 14 contains only the printed name "Herm Carrasquillo" and a little arrow pointing up from the printed name to the cursive name on Line 13. Line No. 15 contains a name written in cursive, a street address, county, and date.

Line No. 16 contains only the printed name "Nathan Carrasquillo" and a little arrow pointing up from the printed name to the cursive name on Line 15. It is obvious that only one person's "signature" appears on Lines 13 and 14, and only one person's "signature" appears on Lines 15-16. The circulator's statement verifies that the part-petition contains 33 signatures. By looking at the part-petition itself, it is easy to see that the statement is unquestionably correct.

Part-petition No. 95 is filled in through Line 35. Line No. 11 is crossed out. Line No. 5 contains only the printed name "Don Wunderle," with no address, county or date. It is obvious that neither Line 5 nor Line 11 contains a "signature" as that term is used in R.C. 3510.38. The circulator's statement verifies that the part-petition contains 33 signatures. By looking at the part-petition itself, it is easy to see that the statement is unquestionably correct.

Part-petition No. 112 is filled in through Line 35. Line No. 7 contains only the printed name "Andrew E. Rusnak," with no address, county or date. Line No. 15 is crossed out. Line No. 27 contains only the printed name "Tim Golay," with no address, county or date. It is obvious that neither Line 7, Line 15, nor Line 27 contains a "signature" as that term is used in R.C. 3501.38. The circulator's statement verifies that the part-petition contains 32 signatures. By looking at the part-petition itself, it is easy to see that the statement is unquestionably correct.

Part-petition No. 114 is filled in through Line 17. Line No. 12 contains the printed name "Timothy Bohn" in parentheses, with the rest of the line crossed out, without entry of a street address, county or date. It is obvious that Line No. 12 does not contain a "signature" as that term is used in R.C. 3501.38. The circulator's statement verifies that the part-petition contains 16 signatures. By looking at the part-petition itself, it is easy to see that the statement is unquestionably correct.

Despite these obvious facts, the plain language of the statute, and the firmly established precedents of this Court, Relators state that the Board of Elections' failure to reject these part-petitions "constitutes a clear disregard of law." (Relators' Merit Brief, pages 13-14.) In truth, it is Relators' argument that clearly disregards the law.

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Proposition of Law No. 5:

Where a circulator did not knowingly permit one person to sign another person's name, R.C. 3501.38(F) does not support invalidating the entire part-petition on the basis of the proxy signing.

Revised Code Section 3501.38(F) provides that "If a circulator knowingly . . . permits a person to write a name other than his own on a petition paper, that petition paper is invalid . . ." In their Proposition of Law No. 3, Relators ask this Court rewrite R.C. 3501.38(F) to require that a petition paper be ruled invalid if a person writes a name other than his own on the petition paper, without regard to whether the circulator knew that had occurred. Relators make this argument despite their demonstrated awareness that this Court has already established that the word "knowingly" as used in R.C. 3501.38(F) is to be given its ordinary meaning: that one is aware of existing facts. State ex rel. Carlson v. Jones (1970), 24 Ohio St.2d 70, 72. Relators buttress their argument with mischaracterizations of testimony that are easily exposed. As will be shown, Relators' contention that five part-petitions should be invalidated pursuant to R.C. 3501.38(F) is unsupported by fact or law.

In their brief on the merits, Relators assert that five part-petitions containing the signatures of 112 electors should be invalidated, each because of an alleged proxy signature. (Relators' Merit Brief, page 12.) Even in this Court, Relators are sparing with the facts that they claim support the disenfranchising of 112 electors.

Relators are clearly referring to Part-petition No. 94, circulated by Robert Conrad, and to Part-petition No. 112, circulated by Intervening Respondent Robert Barnhart, and their testimony will be discussed below. As for the other three part-petitions to which Relators refer in this argument, their identity must be derived from the report of Relators' expert handwriting analyst, Anthony Iezzi, Ph.D., upon which Relators rely in their brief for the proof of their claim of false signatures. (Relators' Merit Brief, page 12.)

Relators insisted that Dr. Iezzi's "expertise is necessary in connection with those signatures on those particular part-petitions . . . and whether or not they're genuine." (Tr. Board Hearing 5/20/99, page 11, line 23, to page 12, line 5.) By proffering Dr. Iezzi's testimony and report to establish whether these signatures are authentic, Relators have conceded that this determination requires specialized skill, experience, training and education "beyond the knowledge or experience possessed by lay persons." Evid. R. 702; e.g., Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 610. The parties are in agreement that a circulator could not have determined whether these signatures were genuine by simply looking at them on the part-petition.

Dr. Iezzi testified that his examination of these signatures included 10 to 15 minutes study of each signature, during which time he was studying the stroking and applying his specialized training and studies in graphic analysis. (Tr. Board Hearing 5/20/99, page 27 lines 15-18; page 46, line 16, to page 47, line 1.) Dr. Iezzi gave his opinion, based upon this study, that certain signatures on Part-petitions Nos. 18, 82, 103 and 105 were not signed by the right person, as well as certain signatures on Nos. 94 and 112. Presumably, three of these first four listed petitions are the ones to which Relators refer on page 12 of their brief on the merits. But there was no testimony whatsoever about how any of the signatures on Part-petitions Nos. 18, 82, 103, or 105 were obtained.

There is no evidence before this Court, nor was there before the Board, that the circulators of these part-petitions "knowingly permitted" a person to write a name other than his or her own on these three part-petitions. The only evidence presented by Relators on the question of whether the circulators of Part-petitions 18, 82, 103, or 105 "knowingly permitted" a person to sign another person's name on the petition is that the circulator would have had to have been trained handwriting analysts to detect whether the signatures were authentic. Relators' claim that three of the four Part-petitions Nos. 18, 82, 103, and 105 should be invalidated in toto should be rejected.

Relators also claim that circulators "admitted that he permitted persons to sign the name other than his or her own name to the petition." (Relators' Proposition of Law No. 3.) This is absolutely false. The testimony of Robert Conrad, circulator of Part-petition No. 94, and Robert Barnhart, circulator of Part-petition No. 112, clearly established that neither of them knowingly permitted proxy signatures, and that both believed that the signatures at issue had been signed by the right person.

Robert Conrad was subpoenaed by the Board to its May 10, 1999, evidentiary hearing. He circulated Part-petition No. 94. Mr. Conrad was asked about the circumstances of the affixing of the signature of Elmer Kuenzer, which is one of the signatures that Dr. Iezzi mentions in his report. Mr. Conrad had no recollection of Mr. Kuenzer. (Tr. Board Hearing 5/10/99, page 44, lines 2-4; page 45, line 15, to page 46, line 21.) There was certainly no testimony or any other evidence that Mr. Conrad "knowingly permitted" someone other than Mr. Kuenzer to place his name on Part-petition No. 94.

Mr. Conrad was then asked about the signatures of Barbara and Harold Ault. Mr. Conrad testified that Mr. Ault, after signing the petition, stated that he would see if his wife, who was sick with the flu, would sign it, and he took the petition into the house. Mr. Conrad followed Mr. Ault but did not follow him into the house. Instead, he waited and listened at the open door of the house. (Tr. Board Hearing 5/10/99, page 44, line 5, to page 45, line 11; page 48, lines 3-6.) Mr. Conrad did not actually see Mrs. Ault sign the petition, and this was the only occasion when he did not actually see the person writing the name on the petition. (Tr. Board Hearing 5/10/99, page 46, line 22-25.) Mr. Conrad left the Ault house believing that Mrs. Ault herself had signed the petition. (Tr. Board Hearing 5/10/99, page 47, line 25, to page 48, line 9.) In order to find evidence to counter Mr. Conrad's belief that Mrs. Ault signed his part-petition, Relators had to hire a certified handwriting analyst, who after studying the Ault signatures was able to form an expert opinion that one of them was not genuine.

There is no evidence in the record whatsoever that Mr. Ault placed Mrs. Ault's name on the part-petition "with the knowledge of the circulator." State ex rel Carson v. Jones, supra, 24 Ohio St.2d at 72. Consequently, Relators' claim that the Board of Elections should have invalidated all of Part-petition 92 is without merit.

Robert Barnhart testified that he had encountered Mr. and Mrs. Magyary, whom he knows, at a table adjacent to his in a restaurant. The Magyarys indicated their desire to sign the petition, and Mr. Barnhart handed the part-petition to them, advising them that they had to sign their own names. He sat down at his table, and in two or three minutes, the Magyarys gave him back the petition with their names on it. Mr. Barnhart inspected the signatures and understood them to be the signatures of Mr. and Mrs. Magyary. (Tr. Board Hearing 5/10/99, page 37, line 14, to page 38, line 11.) Mr. Barnhart specifically testified that he did not knowingly permit one of the Magyary's to sign the other's name, and that the petition was signed in his presence. (Tr. Board Hearing 5/10/99, page 39, lines 5-8, 22-24.)

As with Mr. Conrad, Relators must rely on their handwriting expert in order to find evidence to counter Mr. Barnhart's belief that Mr. Magyary signed his part-petition. As with Mr. Conrad, there is no evidence in the record whatsoever that Mrs. Magyary placed Mr. Magyary's name on the part-petition "with the knowledge of the circulator." State ex rel. Carson v. Jones, supra, 24 Ohio St.2d at 72. Consequently, Relators' claim that the Board of Elections should have invalidated all of Part-petition 112 is without merit.

Relators' argument that a proxy or forged signature on a part-petition necessarily invalidates the entire petition flies in the face of the express language of R.C. 3501.38, and is not compatible with the decisions of this Court and the appellate courts. R.C. 3501.38(F) specifically requires that "if a circulator knowingly. . . permits a person to write a name other than his own on a petition paper, that petition paper is invalid." Relators would have this Court erase the word "knowingly" from the statute.

Both the statute and the case law clearly establish that a false signature does not invalidate an entire part-petition unless the false signature was obtained through a knowing or fraudulent act by the circulator. In State ex rel. Carlson v. Jones, supra, this Court considered whether the word "knowingly" in R.C. 3501.38(F) should be given some special gloss or whether it should be given its ordinary meaning, and concluded that the word means what it normally means, no more and no less:

The word 'knowingly,' as used in the statute, is used in its ordinary and common meaning that one is aware of existing facts. The statute clearly prohibits one person from signing the name of another and provides that if this is done with the knowledge of the circulator that whole part petition is invalid.

Thus, regardless of the intent of the circulator or the parties, the signing of another's name with the knowledge of the circulator invalidates that whole part petition. 24 Ohio St.2d at 72 (emphasis added). In State ex rel. Carson , it was established that a signature was signed by the person's spouse with the knowledge and permission of the circulator.

In State ex rel. Baldridge v. Clerk of Village of South Lebanon (1983), 12 Ohio App.3d 158, by comparison, the circulator did not knowingly permit one spouse to sign the other spouse's name. A woman apparently signed her husband's name on the part-petition when the circulator left her for approximately two minutes to move his vehicle from the roadway onto her driveway. The appellate court found that since there was no evidence that the circulator knowingly permitted the unauthorized signatures, R.C. 3501.38(F) did not authorize invalidation of the entire part-petition. 12 Ohio App.3d at 160-61. The court recognized that the statute, as well as this Court's ruling in State ex rel. Carson, required that result:

To hold otherwise would be equivalent to our finding that the term "knowingly," as used in R.C. 3501.38(F), is mere surplusage and that every petition paper would be invalid in the event an unqualified person signed same . . . Such a decision would undoubtedly facilitate fraud, rather than prevent it.

12 Ohio App.3d at 161. The appellate court affirmed the trial court's finding that the entire part-petitions should not be invalidated.

In an earlier case, a court of appeals ruled that a board of elections abused its discretion by invalidating an entire part-petition where the circulator permitted a wife to take the petition upstairs to her sick husband, since there was no evidence that the circulator intended to any fraud thereby. State ex rel. Donofrio v. Henderson (1965), 4 Ohio App.2d 183. The facts of this case bear a striking similarity to the testimony of Mr. Conrad, who also believed that the sick spouse had signed the petition herself.

More recently, in State ex rel. Citizens For Responsible Taxation v. Scioto (1992), 65 Ohio St.3d 167, this Court addressed subject of whether false signatures should invalidate the entire part-petition, and decided that under some circumstances, fraud could be inferred that would justify invalidating the entire part-petition. The opinion does not contain any defense or explanation for the signatures at issue in that case, stating instead that the signatures' defenders "did not attempt to show that the pertinent signatures were genuine or that the circulator did not know the signatures were false." 65 Ohio St.3d at 174. The opinion indicates that the signatures were "written in the same hand." Id. The Court also noted that in State ex rel. Carson, supra, the circulator "permitted a signer's wife, with the signer's consent, to sign his name." Id.(emphasis added).

This Court's analysis in State ex rel. Citizens For Responsible Taxation, applied to this case, will not result in the invalidation of any entire part-petitions. In this case, it is established that expert handwriting analysis is necessary to determine whether the signatures at issue are genuine, and the record unequivocally demonstrates that Mr. Conrad and Mr. Barnhart did not knowingly permit any proxy signatures, and that both believed that the signatures at issue had been signed by the person whose name appears on the petition. Consequently, Relators' challenge to Part-Petitions 94, 112, and the three other unspecified part-petitions should be rejected.

(Note: The signatures of the Relators' two attorneys [Grendell and Phillips] on their various filings with this Court present an interesting exercise for the lay person seeking to ascertain whether signatures were written in the same hand. One simply cannot tell.)

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Proposition of Law No. 6:

Where a party challenging the validity of signatures on an initiative petition fails to provide in its brief on the merits the specific signatures that it claims are invalid and the specific grounds for the claim of invalidity, its challenge will not be reviewed.

In both their Proposition of Law No. 1, concerning voter registration, and in their Proposition of Law No. 6, concerning at least nine different alleged election law violations, Relators are still protecting their "work product," refusing to identify with specificity which signatures they claim are invalid. Instead, they refer generally to parts of their seven-volume submission of exhibits, essentially inviting the Court and the parties to try to figure out exactly what they are referring to. Perhaps Relators are saving that information for their Reply Brief, when it cannot be rebutted. This does not constitute submission of a case.

Relator bears the burden of proof in this prohibition action. "'Burden of proof' encompasses two aspects: The burden of going forward with evidence (or burden of production) and the burden of persuasion." City of Xenia v. Wallace (1988), 37 Ohio St.3d 216, 219.

Relators therefore have the burden of identifying those portions of the pleadings and the evidence that they believe entitle them to judgment in their favor. Just as a party seeking summary judgment "must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing part a meaningful opportunity to respond," Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus, so must Relators seeking a writ of prohibition specifically identify the factual basis for their claims.

To support their claim that voter registration forms were turned in late, Relators submit "Ex. Z, List 1-R; 148 signatures minus 17 signatures invalidated for other reasons = 131," and approximately 200 "NR" exhibits, which Mr. Phillips explains by affidavit are public records received from the Board of Elections. (Relators' Merit Brief, pages 8, 10; Relators' Exhibit OO, Phillips Supplemental Affidavit.) Exhibit Z, List 1-R, is a four-page list of part-petitions and lines. How is one to know when these electors filled out their registration forms, or when the forms were submitted to the Board, or when the forms were filed, or when they were processed? What do the written notes mean on the "NR" exhibits and who put them there? There is no explanation of the "NR" exhibits that would permit these facts to be ascertained. There are not even cross-references from Exhibit Z to the "NR" exhibits that would assist a reader, bent on speculating as to these matters, to easily locate the "facts" supposedly supporting Relators' allegations.

With respect to the laundry list of alleged violations contained in Proposition of Law No. 6, there are no specifications as to the names or petitions that supposedly contain these irregularities. In this section, Relators rely primarily on unsworn statements by the Board's Director and the Assistant Prosecuting Attorney at the May 10, 1999, hearing, statements that Mr. Phillips himself successfully moved to strike as "evidence"! Tr. Board Hearing 5/20/99, page 91, line 6, to page 93, line 6.

Relators carry both the burden of proof and of production. It is their obligation to bring forth evidence from which a factfinder could plainly see what Relators' claims are, know what specific facts they claim support each claim, and make an intelligent evaluation of that evidence. By failing to bring out the evidence that supposedly supports their claims, Relators have essentially abandoned the claims. Consequently, Relators' claims that "148 signatures minus 17 signatures invalidated for other reasons = 131" signatures should be invalidated based upon Relators' interpretation of "registration," and Relators' various claims set forth in their Proposition of Law No. 6, should all be dismissed.

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Proposition of Law No. 7:

Where the petition for an initiated ordinance submitted to a municipal council includes a specific written request for an election on the proposed ordinance, or where the municipal council on its own initiative submits the proposed law to the board of elections for the holding of an election without giving the committee an opportunity to submit another written request, a charter requirement that the petitioners committee submit a written request to the council requesting that the proposed law be submitted to a vote of the electors has been satisfied.

Relators know full well that the each of the 120 part-petitions that they have filed with this Court bears, at the top of its first page, the following written request for a special election:

To the Director of Finance and Clerk of Council of the City of Avon, Ohio:

We, the undersigned, electors of the City of Avon, Ohio, respectfully propose to the electors of such city for their approval or rejection at the special election to be held on the 1st day of June, 1999, the following Ordinance: . . .

(Emphasis in original.) Relators also know full well that the Avon Council, immediately upon voting not to adopt the proposed ordinance in Ordinance No. 61-99, voted in Ordinance No. 62-99 to submit the proposed ordinance to the electors. Nonetheless, in their Proposition of Law No. 8, Relators contend that the Avon City Council did not have before it a written request for an election on the proposed law, and that the submission is therefore void. Their contention is obviously incorrect, since the petition itself included the written request for the election.

Moreover, even if the Committee had not included the written request for the election in the petition itself, City Council did not afford any opportunity to submit a new request between its vote on Ordinance No. 61-99 and its vote on 62-99. For the Committee to have submitted a new request to the Council after the Council had already sent the proposed law to the Board of Elections would have been a vain act, which is not required.

The Avon Charter provides for exercise of the constitutional right of initiative as follows:

The electors shall have the power to propose any ordinance . . . and to adopt or reject the same at the polls, such power being known as the "initiative." An initiated ordinance . . . shall be submitted to Council by a petition signed by at least ten percent (10%) of the electors of the City of Avon. . . . If Council fails to pass such proposed ordinance . . . or passes it in some form different from that set forth in the petition therefor, the petitioners, through the committee named on such petition, may, by the next regular meeting of Council, request in writing that it be submitted to a vote of the electors. Thereupon, Council shall provide for submitting the petitioned ordinance . . . to the electors at the next general or regular Municipal election . . . but if such petition is signed by at least thirty percent (30%) of such electors, the date of the election may be fixed therein . . ..

Avon Charter Art. X, §1 (emphasis added).

It is indisputable that the petitioners committee had placed before the Council, through the petition itself, the written request that the proposed law be submitted to the electors for a vote. Relators cannot rebuts these facts, which have already been raised by the Avon Citizens in their Memorandum in Support of Motion to Dismiss, so Relators simply ignore them. But the truth cannot be wished away: It is clear that the Charter requirement for a written request for an election has been satisfied.

Even if the petition had not contained the written request called for by the Avon Charter, the Relators' claim would be meritless, because they are litigating the necessity of a vain act. Immediately after its vote not to pass the proposed ordinance, No. 61-99, the Avon Council unanimously voted to pass Ordinance No. 62-99, the submission ordinance. It would have been an unnecessary duplicative act for the petitioners to have subsequently presented another written request to the Council to take the same action that the Council had already accomplished through the passage of Ordinance No. 62-99.

An unnecessary duplicative act is a vain act. State ex rel. Rodriguez v. Industrial Commission (1993), 67 Ohio St.3d 210, 214. This Court does not recognize a legal duty to perform a vain act. See, e.g., State ex rel. Cotten v. Ghee (1998), 84 Ohio St.3d 54, 55 (mandamus will not issue to compel a vain act); Felske v. Daugherty (1980), 64 Ohio St.2d 89, 93 (arbitrary to base entitlement to disability compensation upon performance of a vain act); State ex rel. Garnett v. Lyons (1975), 44 Ohio St.2d 125, 127 (writ of procedendo will not issue to require the trial court to perform a vain act).

The Committee made a written request to the City Council of Avon to submit the proposed law for a vote. The City Council did so. Relators' contention that this process somehow failed to meet the requirements of Article X of the Avon Charter is meritless.

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Proposition of Law No. 8:

Since Relators have not initiated a taxpayers action, they cannot recover attorney fees pursuant to R.C. 733.61.

Relators have styled their action as "State of Ohio, City of Avon, ex rel. [etc.]", as if the action is being prosecuted on behalf of the City of Avon. Furthermore, in Paragraph 56 of the Verified Complaint, the Relators claim that as taxpayers of the City of Avon, they "seek to secure a public benefit for the taxpayers of the City of Avon . . ." However, Relators' lawsuit cannot be treated as a taxpayers action for which they can recover fees, for the reasons set forth in Intervenor-Respondent Avon Citizens' Memorandum in Support of Motion to Dismiss, at pages 7-9.

Relators have now acknowledged that they cannot bring this action as a taxpayers action, notwithstanding the suggestions in their Complaint that they so intended. (Relators' Brief in Opposition to Motion to Dismiss (unnumbered pages).) Since the discretion to award attorney fees pursuant to R.C. 733.61 is limited to statutory taxpayer actions, Relators' assertion that they have not brought a taxpayers action is tantamount to an acknowledgment that they cannot recover attorney fees for "secur[ing] a public benefit . . . expense of a special election." (Complaint, para. 56.) Consequently, it does not appear that there is any issue before the Court as to whether Relators have brought a taxpayers action or could recover fees therefor.

CONCLUSION

The Avon Citizens Committee for Avon Commons, including Mr. Barnhart, wanted an election for the citizens of Avon to vote on a proposed law. They are entitled to initiate the enactment of laws in that manner by the Ohio Constitution and the Avon Charter. The Avon Citizens are real people, trying to exercise precious electoral rights. They are being "lawyered" to death by the Relators, who are abusing the electoral process and the judicial process to try to win what they apparently fear they cannot achieve through the ballot box. This has gone on long enough. By now, the people of Avon have voted to approve or to reject the proposed law. This Court should let the Respondent Board of Election tell the citizens of Avon who has won.

Respectfully submitted,

Barbara R. Marburger (0019152)

R. Todd Hunt (0008951)

WALTER & HAVERFIELD, P.L.L.
1300 Terminal Tower
Cleveland OH 44113-2253
(216) 781-1212
Fax No. (216) 575-0911
Attorneys for Intervening Respondents
Avon Citizens Committee for Avon Commons and Robert Barnhart ...

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